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Kent v. Schweiker

June 22, 1983

DEBORATH KENT, APPELLANT
v.
RICHARD S. SCHWEIKER, SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES, APPELLEE



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Civ. Action No. 81-1747)

Author: Becker

Before: ADAMS, WEIS, and BECKER, Circuit Judges

BECKER, Circuit Judge.

Deborah Kent appeals from an order of the district court granting summary judgment for the Secretary of Health and Human Services in this action to review the Secretary's final determination denying appellant's application for social security disability insurance benefits.Finding that the Secretary's ruling is not supported by substantial evidence, we will vacate and remand for further proceedings consistent with this opinion.

I. Factual Background

Appellant was employed by the New York City Board of Education as a teacher of the handicapped. On October 14, 1977, appellant was walking with a semi-ambulatory retarded student who grew tired of walking and pulled appellant to the ground. Appellant felt sharp pains in her back and promptly sought medical treatment. Within a week, she was admitted to Montefiore Hospital as an emergency patient. There followed a long course of intensive treatment for low-back problems, which have persisted throughout the timeframe of the record in this case.

Appellant has proffered evidence that, since the time of her injury, she has suffered continuous and disabling pain in her back and has derived no comfort from the continuing medical attention that she has received.In her quest for relief from the pain, appellant has undergone hospitalization (consisting principally of bed rest, traction, and medication), has received nerve blocks and extensive physical therapy, has worn a transcutaneous nerve stimulator, and has taken large dosages of medication. Testifying at the hearing before the ALJ, appellant stated that she is in virtually constant pain; that she uses a cane and can walk only two blocks without pain; that she is comfortable only when lying down; that she is able on a typical day to do nothing but read, watch television, and hook rugs; and that she has only very limited ability to sit, stand, bend, walk, lift, and reach. Appellant, who lives with her mother, also said that she cannot perform even simple housework. She will not use public transportation and is afraid to go outside.She also testified that she takes a great amount of medication that makes her feel "spacey" and disoriented, affecting her ability to think.

Although appellant has had transient periods of remission, and although she possesses a Master's Degree in counseling, has an excellent prior work history, and appears to have been quite motivated, she testified that, between the time relevant for the disability determination (June 12, 1979) and the date of the ALJ's decision (July 25, 1980), she could not do any kind of work. And she has adduced medical evidence to support this contention: Dr. Irving J. Estrin, a specialist in physical medicine, Dr. David Kaufman, a neurologist, and Dr. Melvin Adler, an orthopedic surgeon, have concluded, in written reports submitted to the Secretary, that appellant's low-back condition has rendered her totally unfit to perform any gainful employment.*fn1 These doctors also agree that appellant's ability to sit, stand, walk, bend, squat, crawl, or climb is extremely limited and that she cannot frequently lift or carry objects of any substantial weight. Indeed, Drs. Estrin and Adler, the physicians who have seen her most often during the past two years, stated that, in the course of an eight-hour workday, appellant would have the capacity to sit, stand or walk for only two hours each.

Appellant also claims that her physical disorder has caused her to develop a severe emotional impairment for which she has had regular consultation with a psychologist, Dr. Martha Schon. Dr. Schon has stated that appellant "suffers from anxiety and depression, reactive to physical injury which incapacitates her severely." Appellant asserts that her depression also adversely affects her employability.

II. The Administrative Proceedings

Despite the consensus of medical opinion in appellant's favor, the Secretary did not have a physician -- either an orthopedic surgeon or a neurologist -- evaluate appellant's back condition. Nor did he ask a psychologist or psychiatrist to evaluate appellant's mental health. Accordingly, both the Administrative Law Judge ("ALJ") and the Secretary, in rendering their decisions, necessarily relied upon the only medical reports before them: the reports of appellant's own physicians. In addition, the ALJ evaluated appellant's credibility and the "record as a whole."

Notwithstanding the absence of medical evidence supporting the Secretary's position, the ALJ concluded that appellant's impairments and pain, considered either alone or together, "are not of a level of severity to have prevented the claimant from engaging in substantial gainful activity." He found that appellant's allegation of disabling pain "is not fully credible in view of the physical symptoms and signs accompanying the impairments, claimant's range of physical activities, claimant's efforts to relieve the alleged pain, and claimant's appearance, demeanor, and ability to tolerate the hearing procedure." Conceding that appellant's impairments prevented her from resuming any of her previous work activities, see supra note 1, and that her past relevant work, while skilled, provided no transferable skills, the ALJ nevertheless concluded that appellant was able to engage in sedentary work activity*fn2 and that the Social Secretary "grid" regulations, 20 C.F.R. ยง 404.1569 & App. 2, therefore mandated a finding that appellant was not prevented, for any twelve-month period beginning on or before the date of the decision, from engaging in substantial gainful activity.

The ALJ's underlying analysis and the basis for his ultimate conclusions may be summarized as follows:

1. The physicians who had examined appellant did not indicate that she would be incapable of engaging in sedentary work activity; rather, Drs. Estrin and Adler stated that appellant would be able to sit, stand, or walk ...


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